Stifling protest: bad choice between law and order

Sunday, August 26, 2007

Taxpayers and First Amendment values can take a hit when police and other officials forget that dissent is as American as apple pie and also is constitutionally protected speech.

Most recent case in point: The federal government has agreed to pay $80,000 — without admitting “guilt” — to a Texas couple arrested in West Virginia and charged with trespassing in 2004 after they refused to cover up homemade T-shirts with anti-Bush slogans. The pair were handcuffed, removed from a July 4 presidential rally at the state Capitol and held briefly by police. (A White House Presidential Advance Manual detailing how to keep protesters out of the president’s sight was released under subpoena to the American Civil Liberties Union as part of the lawsuit.)

Alone, the incident might be dismissed as a hasty decision by law enforcement later regretted. But consider other examples where local authorities made a bad choice between law and order:

  • The District of Columbia agreed this month to pay $1 million to a group claiming they were illegally arrested during downtown protests in 2002. The settlement of the lawsuit, filed on behalf of more than 120 people, stemmed from demonstrations against the World Bank and International Monetary Fund.

  • The City of Madison, Wis., agreed to pay more than $12,000 in 2004 to end a lawsuit filed on behalf of a man who held a controversial sign as a presidential motorcade passed.

A case can be made for security, crowd control and physical safety in a terrorist era. But letting officials and the public hear diverse opinions — some of them negative and some of them lacking in propriety – would seem vital to a democracy. Managing media moments is no justification for shutting out or shutting down those with an off-the-script message.

The American experience is rooted in protest, from the Boston Tea Party to anti-tax rallies to civil rights marches to protests against the Vietnam War and against U.S. Supreme Court decisions. Yet some government officials and private citizens or companies don’t want a single note of dissonance to reach the collective American ear.

Lyrics performed by Pearl Jam in a Webcast concert criticizing President Bush were censored in early August by monitors hired by AT&T. Two lines from a song to the tune of Pink Floyd’s “Another Brick in the Wall” were deleted: “George Bush, leave this world alone” and “George Bush find yourself another home,” according to the Pearl Jam Web site.

Though censorship by private entities does not violate the letter of the First Amendment, it clearly violates its spirit. AT&T later said the monitors — hired to screen for nudity and profanity — decided on their own to trim the lines.

In other recent cases, prosecutors have attempted to move against anti-Iraq War protesters who posted an antiwar note on an American flag, and against fellow citizens who flew the flag upside-down — an international signal of distress — to express their opposition to administration policies. An Ohio prosecutor filed littering charges against a man who placed a protest sign in a public garden.

In a very real sense, the Declaration of Independence set the tone for American protests and dissent: a bold and controversial statement that challenged those in power. When did we — or at least those intent on keeping negative or contrary messages from reaching our elected leaders — become so sensitive?

Democracy requires vigorous debate. Between elections, free speech provides a platform for those in opposition. The opinions may well be impolite, impudent and even insulting. But the “marketplace of ideas” has no credibility if there’s no real competition among those attempting to share their ideas.

The First Amendment’s protection of the right of a few — or just one — to tell the rest of us that we’re wrong may face no greater contemporary challenge than a spate of state laws barring protesters from appearing at or near funerals of soldiers killed in Iraq and Afghanistan. (Constitutional challenges have been raised in a number of state and federal courts.) A Kansas family group organized as a church inflamed legislators, veterans and others by using those tragic moments to make specious claims linking combat deaths to American attitudes about gays. Repulsive behavior? Most would say yes.

But even as states have passed laws restricting times and locations of such protests, we need to be careful to distinguish a reasonable protective balance between public expression and private grief.

A message may distasteful and obnoxious, but the public needs to hear it — if only to reject it on some basis far more compelling than plain politeness or political expediency.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: E-mail:

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